Top Justice Department officials submitted declarations on Nov. 14 defending and clarifying details surrounding the indictment of former FBI Director James Comey, amid concerns raised by a federal judge while weighing whether to dismiss the case.
During a hearing on Nov. 13, Judge Cameron McGowan Currie of the U.S. District Court for the District of South Carolina said she doubted that Attorney General Pam Bondi could have fully reviewed records of the grand jury proceedings before ratifying Comey’s indictment.
After reviewing the records of the proceedings, Currie told Justice Department attorney Henry Whitaker that some of the records were missing and speculated that the court reporter might not have been present.
Lindsey Halligan, the prosecutor who brought the indictment, submitted a declaration stating that a gap in the transcript reflected when both she and the court reporter left the room. That period, she said, “consisted solely of the grand jury’s private deliberations, during which no prosecutor, court reporter, or other person may be present pursuant to Rule 6(d) of the Federal Rules of Criminal Procedure.”
“There are no missing minutes, contrary to the suggestion raised by the court,” Halligan added.
In a separate declaration, Bondi said she ratified the indictment on Oct. 31.
Noting the court’s concerns, Bondi said: “For the avoidance of doubt, I have reviewed the entirety of the record now available to the government and confirm my knowledge of the material facts associated with the grand jury proceedings.
“Based on that knowledge, I hereby exercise the authority vested in the Attorney General by law … to ratify Ms. Halligan’s actions before the grand jury and her signature on the indictment returned by the grand jury.”
The details surrounding Bondi’s ratification could be critical to whether the case against Comey reaches trial. Attorneys for both him and New York Attorney General Letitia James, who was also indicted in a case brought by Halligan, have asked Currie to throw out the prosecutions, based on the allegation that Halligan was invalidly serving as interim U.S. attorney for the Eastern District of Virginia.
Halligan was the only prosecutor to sign the indictment of Comey. After reviewing the evidence surrounding the indictment, Currie said she thought Halligan acted alone.
In her declaration on Nov. 14, Halligan said that she had “reviewed the full transcript of the grand jury proceedings, and the transcript accurately reflects the entirety of the government’s presentation and presence in front of the grand jury.”
“There was no additional presentation, interaction, or discussion with the grand jury outside of what is reflected in the transcript,” Halligan said.
The defense has alleged that Halligan’s appointment in September was part of what they described as a last-minute effort to indict Comey. Both Comey and James have also filed motions to dismiss, alleging that the Trump administration was pursuing a vindictive prosecution against Trump’s political enemies.
Separate motions to dismiss related to Halligan’s appointment were argued on Nov. 13. Currie told attorneys that she expected to have a decision by Thanksgiving. Attorneys for James and Comey have asked the court to dismiss the case with prejudice, meaning the same claims can’t be brought in subsequent indictments against the two.
The Justice Department said that Halligan’s appointment was valid but maintained that the indictments against Comey and James should stand because of Bondi’s approval.
“The Attorney General’s ratification … cures any flaw in both indictments from Ms. Halligan’s appointment,” it said in a court filing.
Halligan had replaced Erik Siebert, who was acting as interim U.S. attorney for the district and is thought to have resisted prosecuting James.
Comey’s and James’s attorneys told Currie that Halligan’s appointment was illegal because it occurred 244 days after Siebert’s appointment. As such, it fell outside of the 120-day timeframe that federal law set up for interim appointments, they argued. They also alleged that because the administration didn’t obtain Senate approval, it violated the appointments clause of the Constitution.
The Justice Department disputed the defense’s interpretation of the law and argued that the law didn’t confine the attorney general to an initial 120 days. Rather, it said, the law allowed for successive appointments of attorneys who would each have 120-day limits on their time in office.
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